Caucasus Edition

Journal of Conflict Transformation

A New Look at Old Principles: Making the Madrid Document Work

Analysis

The Minsk Group has encouraged Presidents Ilham Aliev and Serzh Sargsyan to agree on the Madrid Principles for almost four years. To date, the leaders have only managed to agree on the preamble. This article assesses why the Madrid document remains unsigned, and challenges the conventional wisdom that the most divisive issues should be left for last. Instead, this analysis suggests a modified plan for peace that confronts the most divisive issue first: Nagorno-Karabakh’s status.

The Minsk Group’s Mirage of Progress

Since 1992, the Minsk Group of the OSCE has tried and largely failed to facilitate a peaceful resolution to the Nagorno-Karabakh conflict, yet official statements say that negotiations are moving forward. The co-chairs often express hope that a peaceful resolution is just beyond the horizon, but those familiar with the issue have grown weary of this mantra.

Initially proposed by the Minsk Group to the Presidents of Armenia and Azerbaijan in 2007 and revised in 2009, the Madrid Principles include the following six points:

1. Return of the territories surrounding Nagorno-Karabakh to Azerbaijani control

2. An interim status for Nagorno-Karabakh providing guarantees for security and self-governance

3. A corridor linking Armenia to Nagorno-Karabakh

4. Future determination of the final legal status of Nagorno-Karabakh through a legally binding expression of will

5. The right of all internally displaced persons and refugees to return to their former places of residence

6. International security guarantees that would include a peacekeeping operation

The parties disagree about the sequence, however. Azerbaijan prefers the order shown above, considering special modalities for the withdrawal of Armenian military forces from the regions of Kelbajar and Lachin. Armenia views this order as unfair, arguing that it would be giving up land but only receiving a promise in return about Nagorno-Karabakh’s final legal status in the future. Given that Nagorno-Karabakh has had de facto independence from Baku for almost 20 years, let us examine what addressing the status of Karabakh would imply.

In their current form, the Madrid Principles avoid the Nagorno-Karabakh conflict’s thorniest point of contention by pushing the issue of status into the vague realm of “future determination.” Such ambiguity makes the Madrid document vulnerable to manipulation and misunderstanding. More important, it prevents a credible and peaceful resolution.

The Madrid document fails to define the entity of “Nagorno-Karabakh.” During the Soviet period, the Azerbaijan Soviet Socialist Republic included both the Nakhichevan Autonomous Soviet Socialist Republic (Nakhichevan ASSR) and the Nagorno-Karabakh Autonomous Oblast (Nagorno-Karabakh AO). ASSRs enjoyed a greater degree of autonomy within the Soviet system than AOs.

Whereas Nakhichevan ASSR’s autonomous status was carried over to the Republic of Azerbaijan’s 1995 constitution as the Nakhichevan Autonomous Republic, the constitution makes no mention of Nagorno-Karabakh. The autonomous status of the Nagorno-Karabakh AO was, in fact, dissolved on November 26, 1991, shortly after Azerbaijan’s Supreme Council adopted the country’s independence from the Soviet Union on October 18, 1991 (De Waal, 2003, p. 162).

Nagorno-Karabakh’s absence in Azerbaijan’s constitution ties directly into the question of its final legal status. When it comes time for the determination of final status, to what version of “Nagorno-Karabakh” will that status be applied? The Madrid Principles offer no answer to this question: they contain no definition of what territory is considered to be included in Nagorno-Karabakh. And, as noted, Azerbaijan’s constitution also neglects to mention, let alone define, Nagorno-Karabakh. Because of this omission, Azerbaijan could later impose its own territorial definition of Nagorno-Karabakh, without being restrained by a previously stated definition.

If the Madrid Principles are followed to their logical conclusions in the order listed above, then the Armenian-controlled territories surrounding the former Nagorno-Karabakh AO would be returned to Azerbaijan, followed by the repatriation of hundreds of thousands of Azerbaijani refugees and internally displaced persons. At that point, Armenians fear, Azerbaijan would institute the “future determination of the final legal status of Nagorno-Karabakh through a legally binding expression of will,” by calling for a referendum.

Rather than being a referendum on the independence of what was the majority-Armenian Nagorno-Karabakh AO of Soviet Azerbaijan, Armenia is very concerned that the future referendum would include the votes of the newly repatriated Azerbaijani majority in the territories surrounding the former Nagorno-Karabakh AO. The Armenians would be the minority in such a broad territorial definition of Nagorno-Karabakh, forfeiting their ability to achieve de jure independence from Azerbaijan through the referendum. This is a legitimate grievance, and it makes the Madrid Principles in their current form a non-starter.

A Pragmatic Plan for Peace: Clarifying and Ordering the Madrid Principles

Clarifying and ordering the present version of the Madrid Principles offers a more viable alternative road map for Presidents Aliev and Sargsyan. The leaders must first reach a political compromise on the following two points:

An agreement on the territorial boundaries of Nagorno-Karabakh (not mentioned in the Madrid Principles).

(Envisioned compromise: The borders of the former Soviet Nagorno-Karabakh AO, plus the Lachin Corridor with an agreed-upon width.)

An agreement on the participants of a referendum on secession which would serve as “a legally binding expression of will” for the determination of the final legal status of Nagorno-Karabakh, and the logistics of the voting process (clarification to D).

Second, the Minsk Group must encourage Presidents Aliev and Sargsyan to agree to the following order of the updated Madrid Principles, which would include the clarifications outlined above:

1. An agreement on the territorial boundaries of Nagorno-Karabakh, including a corridor linking Armenia to Nagorno-Karabakh (new principle; C)

2. An interim status for Nagorno-Karabakh providing guarantees for security and self-governance (B)

3. A referendum on secession, facilitated by the OSCE, which would serve as a legally binding expression of will for the determination of the final legal status of Nagorno-Karabakh (D, revised)

4. International security guarantees that would include a peacekeeping operation (F)

5. Return of the territories surrounding Nagorno-Karabakh to Azerbaijani control (A)

6. The right of all internally displaced persons and refugees to return to their former places of residence (E)

A Win-Win Situation

The Minsk Group co-chairs stated that the Madrid document “was not an ultimatum, and its provisions were not the Ten Commandments” (Merzlyakov, 2008). Incorporating the aforementioned changes to the document would result in a win-win situation that balances self-determination and territorial integrity, in which both the Armenians and the Azerbaijanis have much to gain.

What the Armenians Gain:

According to the Soviet Union’s final census of 1989, the Nagorno-Karabakh AO had a majority-Armenian population of 76.9% and an Azerbaijani minority of 21.5% (International Crisis Group, 2005, p. 4). The referendum would allow for the de jure secession of Nagorno-Karabakh, with the necessary addition of the Lachin Corridor. This would satisfy the Armenians’ right to self-determination.

What the Azerbaijanis Gain:

Of the seven regions outside of the former Soviet Nagorno-Karabakh AO that are fully or partially controlled by Armenian forces, six would be returned to Azerbaijan in their entirety, as well as the region of Lachin outside of the Lachin Corridor, amounting to about half of the territory now under Armenian control (International Crisis Group, 2005, p. 1). [1] This would satisfy the Azerbaijanis’ right to territorial integrity.

Conclusion

Nagorno-Karabakh is a tinderbox that is dangerously close to igniting. The South Caucasus has the unfortunate reputation of garnering diplomatic attention only after bullets start flying. There is still time, albeit less and less, to find a diplomatic solution to the Nagorno-Karabakh conflict. Noting the urgency of this matter, the alternative plan for peace outlined above seeks to work within the Madrid document to create a viable and peaceful resolution that should interest both parties. I hope that the Armenian and Azerbaijani leadership will consider this plan and its potential for solving differences with the pen rather than the sword.

References

De Waal, T. (2003). Black garden: Armenia and Azerbaijan through peace and war. New York, NY: New York University Press.

Merzlyakov, Y. N. (2008, November). Statement by the Minsk group co-chairs to the OSCE permanent council (p. 2). Vienna, Austria. Retrieved from the U.S. Mission to the OSCE website: http://osce.usmission.gov/uploads/AF/UV/AFUV30tG_rF6f8OXYLYbsA/st_110608_minskgroup.pdf

President of the Republic of Azerbaijan, Press Service of the President of the Republic of Azerbaijan and Political Analysis and Information Support Department of the Administration of the President. (2010). The constitution of the republic of Azerbaijan. Retrieved from the President of the Republic of Azerbaijan website http://www.president.az/azerbaijan/constitution?locale=en

[1] This estimate is based on the following figures provided by the International Crisis Group’s September 2005 report, Nagorno-Karabakh: Viewing the Conflict from the Ground: the area of the former Soviet Nagorno-Karabakh AO and the seven regions outside of it that are now fully or partially controlled by Armenian forces is about 11,722 sq. km; the area of the seven regions outside of the former Nagorno-Karabakh AO that are fully or partially controlled by Armenian forces is about 7,409 sq. km.; the area of the parts of the Mardakert and Martuni regions which were in the former Soviet Nagorno-Karabakh AO but are now controlled by Azerbaijani forces is 327 sq. km; the area of the former Soviet Nagorno-Karabakh AO was 4,388 sq. km.; and the area of the former Soviet region of Lachin was 1,835 sq. km. Without calculating the former Soviet region of Lachin, if the win-win situation described above were to be followed, Azerbaijan would receive a net gain of about 5,247 sq. km. (+7,409-1,835-327), or 44.76% (5,247/11,722) of the territory currently controlled by the de-facto Republic of Nagorno-Karabakh. If, for example, one-third of the region of Lachin was to be designated as the Lachin Corridor (611.67 sq. km.), then Azerbaijan would receive a net gain of about 6,470.33 sq. km. (+7,409-611.67-327), or 55.20% (6,470.33/11,722) of the territory currently controlled by the de-facto Republic of Nagorno-Karabakh.

Comments

ktesiphona

14 Jun 2011

Armen, if you speak about return of armenian refugees to Baku, Sumgayit, Ganja, etc. then you should consider the return of azeri refugees to Yerevan, Goycha, Zangazur, etc. as well. Till 1988 we used to live in Iravan, now we are refugees, then you should consider return of ancient inhabitants of Iravan, that is Azerbaijanis to Iravan too. Then we want Goycha, Zangazur and other occupied lands back. So, let's at first solve Karabakh problem. Then we'll speak about other occupied lands, don't worry.

john

19 Apr 2011

Armen,
I think we have a solution to the conflict.
I made some research and read that the NKR had adopted a new constitution according to which the NKR now includes not only the territory of NKAO, but also the 7 districts around it and as you mention Shahumyan, Martuni and Mardakert.
This little know document changes the entire game, I would say. Was I Azerbaijani government I would actually agree with this document and try to make it the basys of negotiations. Even if the number of Azeris who lived in this territory prior to the war is not a million, and even if we take the most concervative estimates, still there will be few times more Azeris than Armenians who had legal residence in this territory prior to the war. I believe there was a Soviet census in 87 or 88. That census should have the data.
On a more serious note, I am happy that we both agree that the peaceful population irrespective of their ethnicity should have a right to return home and that both the Armenian and Azerbaijani population should have security guarantees. I fully agree that this and other humanitarian concerns should be the core of the peace process.
Thank you
John

Armen Tiraturyan

18 Apr 2011

John,
I consider NKR with its current territory plus Shahumyan, Martuni and Mardakert. Modern Republic of Azerbaijan proclaimed being the direct predecessor of Democratic Republic of Azerbaijan of 1918-1920, which never controlled Karabagh (both highland and lowland), and even Nakhichevan (see the special status of Nakhichevan in the Treaty of Kars). NKAO was an internal administrative division, which belonged neither to Azerbaijan, nor Armenia, nor Georgia nor any other administrative unit (in the form of soviet socialist republics, autonomous republics, autonomous oblasts, administrative rayons, etc.), but it was controlled by the USSR, which collapsed in 1991. When one talks about occupation, let's nor forget who the real occupant is, who besides illegally occupying in whole or partially the above mentioned three regions of NKR, also occupies Lowland Karabagh and Nakhichevan. Even worse, any evidence of non-Azerbaijani presence on those territories are systematically and brutally destroyed (the largest one being the destroying of Jugha Cemetery of Cross-Stones (khachkars) which before its destruction was the largest preserved 13-16th century cemetery of medieval cross-stones in the world).
As to the problem or refugees, I think this is what should be the main topic of the negotiations. First of all, the number of 500,000 should be validated with some credible data. The Azerbaijani propaganda likes to round up a lot of numbers combined with obviously false statements, such as "1 million refugees and IDPs" or "20% of territory occupied by Armenia", etc. So first of all this "over 500,000 legal residents of Azerbaijani background" should be corrected to reflect the real factual numbers. Secondly, the number of Armenian refugees from Artsvashen, Shahumyan, Martakert, Martuni, Baku, Sumgayit, Gandzak (Ganja in Azeri tranliteration), and other parts of soviet socialist republic of Azerbaijan should be considered. Since they can't return to their pre-conflict homes any more because of serious safety risks, a swap of homes can be negotiated. Many citizens of Azerbaijani background may need to get settled in the homes where Armenians lived in Baku, Sumgayit, Artsvashen, and other places. I do not have anything against the return of peaceful population. The returning refugees should have the choice of receiving NKR citizenship, and all citizens of NKR should be able to take part in elections, elect and be elected in public offices. However, a careful consideration should be made to ensure that after the return of the Azeri refugees, the safety of the ethnic Armenian citizens of NKR are not endangered, otherwise another round of the conflict will be inevitable. In my opinion, another subject of negotiations may be discussions to determine whether in future NKR will be a republic or federation or confederation or anything else after the return of the Azeri refugees.

john

12 Apr 2011

Armen,
I am trying to understand your argument. So you are saying that the Soviet borders of NKAO is not what you consider to be the territory of NKR. And you are effectively including the occupied/liberated 7 districts outside NKAO borders in your definition.
Now correct me if if am wrong, but that territory has about 150,000 legal residents of Armenian background and over 500,000 legal residents of Azerbaijani background who are now displaced.
So if we accept your definition of NKR, then you either want to permanently restrict hundreds of thousands of people their right to return home based on their ethnic background, which I suspect is illegal and probably accounts for some kind of a war crime under international law, so I hope this is not what you mean. Or you are advocating for an NKR that will have a population where the overwhelming majority are Azerbaijanis. And then what about the future government of such an entity and its self-determination rights? Are you accepting the rights of these people to have their representatives in the government and have a right of self-determination?
Could you please clarify?
I am not an expert of international law either, neither I am an Azerbaijani, as you might suspect. I am just trying to understand your argument as a reader.
Thank you

Armen Tiraturyan

11 Apr 2011

Mark,
in your analysis you fail to go deep into the conflict and its legal base. I am afraid, your analysis is just another branch of artificial "balancing" theory of Tomas De Waal's "Black Garden". I am not an expert on international law, but there are several points that need more careful investigation before doing any analysis on Karabagh.
First, Nagorno-Karabagh Republic or Artsakh should never be confused with NKAO. NKAO was an administrative unit arbitrarily drawn in the offices in the Kremlin by bolshevist commissars.
Secondly, present-day Republic of Azerbaijan is the successor of Republic of Azerbaijan of 1918-1920, which is stated in their Declaration of Independence. in 1918-1920, Republic of Azerbaijan neither had any title to Karabagh, nor exercised any manner of effective control over Karabagh (I am not even talking about Nakhichevan). And to remind, Karabagh comprises of Highland (Mountainous) Karabagh and Lowland Karabagh. This means, Azerbaijan has no legal right to claim any control over NKR or any part of it.
When talking about return of territories, it should be reminded that parts of NKR are under Azerbaijani occupation (Shahumyan Region, Martuni and Martakert) and it is the return of those territories that should be discussed during the negotiations. No territory of NKR can be subject to abandoning to Azerbaijan, because that will heavily damage the defence of NKR and will put the lives of population of Karabagh at risk, and another war will be imminent during which Azerbaijan will try to grasp the remaining parts of NKR, and the people of NKR will be forced to fight to defend their families and homes.
The only thing that the mediators can do is to urge Azerbaijani leadership to give up the anti-Armenian racist propaganda and start trust building activities between Armenia, NKR and Azerbaijan. Madrid principles should be put on highest shelves of archive drawers to collect dust, and, once some trust is built between three parties, work on more realistic and safer principles of peace agreement.

Michael Kambeck

8 Apr 2011

This analysis is clear, concise and to the point. However, I agree that Azerbaijan will "emotionally" not feel satisfied with this solution, mainly due to their own repeated propaganda. This is the problem: only a solution as described by the author will reliably lead to what the Aliyev family has been promising for so long: regaining Azerbaijani territory. All other options would have arbitrary grave consequences, most probably leading to thousands of victims, the loss of the oil revenues and yet again a government fallen over the NK issue. The question therefore is how rationally Baku is able and willing to act.
About the Armenian military action of the past, it has to be said that they only moved in to fight Azerbaijani troops, which were already there. Operation ring and other pogrom activities were in full swing all over Azerbaijan and the population in NK had to be saved or left to be ethnically cleansed. In this situation, the "parent state" loses the right of undisputed territorial integrity and must accept that the majority of the ethnic Armenian population of NK would never feel save again under Azerbaijani rule and seek its right to self-determination. Irrespective of all this, Azerbaijan is bound by international law, by a number of multi-lateral treaties and in particular by the Bishkek ceasefire treaty to refrain from the use of force or the threat of force. So legally, there is only one way, and that is a negotiated peace.

Vahan Hunanyan

7 Apr 2011

There is a mistake in first sentence: not Heydar but Ilham Aliyev

Ali Sharif

7 Apr 2011

I think the author misses one important point. NK is legally part of Azerbaijan. The return of seven districts outside NK would not satisfy Azerbaijan's claim for territorial integrity, as the author wrongfully argues.
Of course, Armenian territorial claim over NK is the major problem and should be addressed somehow. On the other side, Armenia gained control over NK through military force. That means that legitimizing the claim over NK would legitimize also the use of military force for territorial gain. (It is not about self-determination) In this case, Azerbaijan can also resort to this principle for the return of its internationally recognized territory.
Obviously, Azerbaijan and Armenia have competing goals. To make first steps, the parties need to engage in confidence-building measures. For this reason, I believe, that sequence, offered by the Minsk Group is the only solution.